PURCHASING TERMS AND CONDITIONS (effective 1/1/2021):
Each purchase order (the "Order") is placed subject to the following terms and conditions (the "Terms") that are incorporated in the Order as if fully written therein and which may only be modified by Benchmark Industrial Inc. ("Benchmark") in its sole and absolute discretion:
- Offer; Acceptance; Terms of Order. This Order is an offer to Seller by Benchmark for the Benchmark's purchase of goods and/or services (the "Product"). This Order does not constitute an acceptance of any offer or proposal made by Seller and supersedes all prior agreements, orders, quotations, proposals and other communications regarding the Product covered by the Order. Any reference in this Order to any offer or proposal made by Seller is solely to incorporate the description or specifications of Product in the prior offer or proposal, but only to the extent that the description or specifications do not conflict with the description and specifications in this Order. Seller's written acceptance, Seller's commencement of any work under this Order or any other conduct by Seller that recognizes the existence of a contract with respect to the subject matter of this Order constitutes Seller's acceptance of these Terms only. This Order is limited to and conditional upon Seller's acceptance of these Terms exclusively. Any modification of these Terms must be expressly stated in the Order or made in the manner required under Section 13. Without limiting the foregoing, acceptance is limited to these Terms, and Benchmark objects to any different or additional terms expressed or implied in any quote, proposal, offer or confirmation sent or to be sent by Seller, which are hereby expressly rejected and superseded by the Order and these Terms. Any delivery of conflicting terms shall not operate as a rejection of this Order if Seller accepts Benchmark's offer by commencement of work, shipment of the Product, or by other means acceptable to Benchmark, in which case this Order shall be deemed accepted by Seller without any additional or different terms or variations whatsoever.
- Prices. The price of the Product (unless otherwise expressly provided in the Order) is DDP (Delivery Duty Paid) at Benchmark's facility at 950 Claycraft Road, Gahanna, Ohio 43230 (or such other facility or destination as specified in the Order), and includes storage, handling, packaging, freight, insurance, transportation, duties, taxes (except for any value added tax (VAT) imposed by a non-USA jurisdiction, which must be shown separately on Seller's invoice for each shipment) and all other expenses, costs and charges of Seller, unless Benchmark agrees otherwise in writing in this Order. Payment will be made against correct invoices and documentation on the payment terms specified in this Order. If Seller's quoted prices for the Product covered by the Order are reduced (whether in the form of a price reduction, rebate, allowances, or additional discounts offered to anyone) at time of any shipment, Seller agrees that the price to Benchmark for such Product will be reduced accordingly and the Benchmark will be billed at such reduced prices. Should the Order be for purposes of the rental of goods, the rental price shown on the Order hereof shall include full insurance and maintenance coverage, unless otherwise specified.
- Shipment; Delivery. Seller shall ship and deliver product in accordance with Benchmark's instructions and specifications as set forth in the Order. Every shipment must be accompanied with a packing list specifying Benchmark's Order number, Benchmark's item number, quantity ordered and quantity shipped and such other information as Benchmark may reasonably request. All Orders must be shipped and delivered in full by Seller unless specified otherwise by Benchmark in the Order. Benchmark reserves the right to reject any partial deliveries. Time and quantities are of the essence under an Order. Seller agrees to 100% on-time delivery of the quantities and at the dates/times specified by Benchmark, as set forth in an Order. Failure by Seller to meet agreed delivery and quantities shall be considered a breach of the Order, and Benchmark shall have the right, in addition to any other remedies (at law or at equity) under applicable law, to refuse and cancel without cost to it and charge Seller with any loss or damage incurred as a result of Seller's failure to make delivery within the time specified. Seller will at all times keep Benchmark fully informed concerning the status of this Order.
- Payment. Benchmark shall pay Seller's invoice within sixty (60) days of receipt of such invoice, however, Benchmark shall receive a 2% discount if Benchmark pays within 10 days after receipt of Seller's invoice. All Seller invoices must be submitted electronically via email to ap@benchmarkinc.com. If invoices are not submitted electronically, it may delay payment until such invoices are submitted electronically. All Seller invoices shall be paid via ACH or physical check net 30 days from the later of the date of electronic receipt of correct invoices and related documentation, or the date of Benchmark's receipt of the Product. Discounts offered by the Seller to Benchmark shall be allowed if payment is made on or before the payment date associated with such discount(s).
- Warranty. Benchmark shall have the right to inspect and test the Product at destination before acceptance or payment. Seller hereby warrants to Benchmark and any purchaser from Benchmark that the Product is of good quality, material and workmanship and free from defects, latent or patent; conform in all respects to applicable drawings, samples, specifications, descriptions as furnished or approved (where and to the extent furnished by Seller) by Benchmark; are merchantable and free of defects in design (to the extent Seller or any of its subcontractors or suppliers designed or participated in the design of the Product in whole or in part, even if the design has been approved by Benchmark); have been selected, designed (to the extent Seller or any of its subcontractors or suppliers designed or participated in the design of the Product in whole or in part, even if the design has been approved by Benchmark), manufactured or assembled by Seller based upon Benchmark's intended use and are fit and sufficient for the purposes intended by Benchmark, and are free of all liens, claims and encumbrances whatsoever. Seller further warrants that goods sold hereunder shall not infringe any patent, trademark, design, and other industrial property rights of a third party in any country. In addition, Seller warrants that the services provided under the Order shall be performed using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with (i) the specifications set forth in the applicable Order, (ii) generally accepted industry standards for similar services and (iii) all applicable federal, state and local laws, ordinances, regulations, standards and requirements. The foregoing warranties are in addition to any warranties provided under applicable federal or State law. Unless otherwise set forth in an Order, the duration of each warranty provided by Seller to Benchmark for the Product will end on the later of the date of expiration of any warranty period provided by applicable law for the Product. Seller's warranty shall also survive any inspection, acceptance, or payment. Benchmark may, without prejudice to any other available remedy, return to Seller or require Seller to repair or replace (in each case, at Seller's expense) defective goods or parts thereof.
- Compliance with Laws. Seller, and any Product supplied by Seller, shall comply with all applicable laws, including rules, regulations, orders, conventions, ordinances or standards, that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the Product, including laws relating to environmental matters, hiring, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health or safety, and motor vehicle safety. This Order incorporates by reference all clauses required by these laws. All materials used by Seller in the Product or in their manufacture shall satisfy current governmental and safety constraints on restricted, toxic and hazardous materials as well as environmental, electrical and electromagnetic considerations that apply to the country of manufacture, sale or destination. Before and at the time the Product are shipped, Seller will give Benchmark sufficient warning in writing (including appropriate labels on all Product, containers and packing, together with disposal and recycling instructions, material safety data sheets and certificates of analysis) of any hazardous material that is an ingredient or part of the Product, together with any special handling instructions that are needed to advise carriers, Benchmark and their employees how to take measures to prevent bodily injury or property damage while handling, transporting, processing, using or disposing of the Product, containers and packing.
- Remedies. The rights and remedies reserved to Benchmark in this Order shall be cumulative with and additional to all other or local, State, or federal legal or equitable remedies available to Benchmark. At Benchmark's request, Seller will promptly reimburse Benchmark for any incidental or consequential or any and all other damages caused by Product; recoverable damages include, among other matters, attorneys' fees and other professional fees, court costs, settlements and judgments incurred by Benchmark and other costs associated with Benchmark's administrative time, labor, and materials.
- Indemnification. To the fullest extent permitted by law, Seller will defend, indemnify and hold harmless Benchmark, and Benchmark's officers, directors, employees, agents or representatives, members, affiliates, successors, and assigns, and customers, dealers and users of the products sold by Benchmark against any and all claims, damages, liabilities, or expenses (including attorneys' fees, court costs, and other professional fees, settlements and judgments) arising out of or resulting in any way from Seller's entrance on property owned or leased by Benchmark, any Product, Benchmarks or Benchmark's customer's use of the Product, including but not limited to any defect thereof, any hazardous material contained in a Product, or from any negligent or wrongful act or omission of Seller, or Seller's agents, employees or subcontractors, or any breach or failure by Seller to comply with any of Seller's representations or other terms and conditions of this Order (including any part of these Terms). Seller's obligation to defend and indemnify under this Section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability, or otherwise except for claims that arise as a result of the intentional negligence of Benchmark.
- Work on Benchmark's Premises. If Seller performs any work on Benchmark's or Benchmark's customer's premises or utilizes the property of Benchmark or Benchmark's customer, whether on or off Benchmark's or Benchmark's customer's premises: (i) Seller will examine the premises to determine whether they are safe for the requested services and will advise Benchmark promptly of any situation it deems to be unsafe; (ii) Seller's employees, contractors and agents will comply with all regulations that apply to the premises and may be removed from Benchmark's premises at Benchmark's discretion; (iii) Seller's employees, contractors and agents will not possess, use, sell, transfer or be under the influence of alcohol or unauthorized, illegal or controlled drugs or substances on the premises; and (iv) to the fullest extent permitted by law, Seller will indemnify and hold Benchmark and Benchmark's customer (and their respective officers, directors, employees, agents, successors and assigns) harmless from and against any and all liability claims, demands or expenses (including attorney's fees and other professional fees, settlements and judgments) for damages to the property of or personal injuries to Benchmark, its customer, their respective employees or any other person or entity if the claims arise from or in connection with Seller's work on the premises or Seller's use of Benchmark's or Benchmark's customer's property, except for any liability, claim or demand arising out of the sole negligence of Benchmark or Benchmark's customer.
- Force Majeure. Any delay or failure of either party to perform its obligations shall be excused if, and to the extent, that it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence, including without limitation, acts of God or of the public enemy, any preference, priority or allocation order issued by Government or any other act of Government, fires, floods, epidemics, quarantine restrictions, unusually severe weather and delays of a party's supplier due to such causes. For greater certainty force majeure does not include any strike, lock-out, labor dispute, or inability to obtain labor, utilities, services, transportation, or raw materials. Seller's inability to perform as a result of, or delays caused by, Seller's insolvency or lack of financial resources is deemed to be within Seller's control. The change in cost or availability of materials or components based on market conditions or supplier actions will not constitute force majeure. Written notice of such delay (including the causes and anticipated duration of the delay) must be given to the other party as soon as possible after the occurrence.
- Changes. Benchmark shall have the right to make changes in this Order (for example, designs, quantities, specifications, materials, samples or descriptions of Product, and/or to time and place of delivery or method of transportation) but no additional charge will be allowed unless authorized in writing by Benchmark. In the event that Benchmark and Seller are unable to reach agreement on any pricing adjustments to be made in connection with such changes, any difference in price or time for performance resulting from such changes will be equitably adjusted by Benchmark based on a fair cost assessment, after receipt of documentation in such form and detail as Benchmark may direct. In order for Seller to request a reasonable difference in price or time for performance as a result of a change, Seller must notify Benchmark of its request in writing within three (3) days after receiving notice of a change.
- Termination. (a) Either party hereto shall have the right to terminate and cancel this Order in whole or in part if the other party shall breach any of the terms, conditions, or provisions of these Terms or an Order, and shall fail to remedy such breach within five (5) days after written notice thereof (b) Benchmark shall also have the right to cancel for any reason whatsoever in Benchmark's sole and absolute discretion, including but not limited to pricing, delivery timing, shipping, quantities, and or convenience(c) Benchmark shall have the right to immediately terminate this agreement if Seller shall (1) become insolvent, commence or file any voluntary or involuntary proceeding or petition in bankruptcy in any court or (2) shall make any assignment for the benefit of creditors or (3) shall enter into any composition with its creditors or (4) if a receiver is appointed for any of the Seller's property or (5) if at any time or for any reason, Seller fails to provide adequate assurance of performance upon Benchmark's request under UCC 2-609 or any other applicable code, law, or statute. In the event of a termination by Benchmark under this Section 12, Benchmark's sole obligation will be to pay for Product received prior to Benchmark's termination that is not returned, and/or to promptly return any Product that Benchmark does not desire to purchase. The foregoing remedy shall also apply to customized goods.
- Entire Contract; Amendment; Non-assignment. (a) This Order and these Terms constitutes the entire agreement between Seller and Benchmark with respect to the matters contained in this Order and supersedes all prior oral or written representations and agreements. This Order and these Terms may only be modified by a written amendment executed by authorized representatives of Benchmark, in Benchmark's sole and absolute discretion. (b) The failure of either party at any time to require performance by the other party of any provision of this Order shall in no way affect the right to require performance at any later time, nor shall the waiver of either party of a breach of any provision of this Order constitute a waiver of any later breach of the same or any other provision of this Order. (c) This Order may not be assigned or delegated by Seller without Benchmark's prior written consent, in Benchmark's sole and absolute discretion. (d) Benchmark may modify these Terms with respect to future Orders and Order amendments at any time by posting revised Terms to its internet web site as listed in Section 1 or at such other internet web site as is specified in writing by Benchmark to Seller, and such revised Terms will apply to all Orders and Order amendments issued thereafter and such shell be binding on Seller. The Terms that are applicable to the Order or Order amendment shall be the version of the Terms that is in effect on the date of the Order or the Order amendment applicable to the Order, whichever date is later.
- Applicable Law. Each Order and any claims relating to Product provided or to be provided under such Order will be governed by the laws of the State of Ohio and the United States excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980), as amended, and excluding any conflict of laws provisions that would require application of another choice of law. Any legal action pertaining to the Order or these Terms shall be brought in the Franklin County, Ohio common pleas system.
- Confidential Information. Seller shall treat all documents, or other things disclosed or provided to Seller by Benchmark, either directly or indirectly, as proprietary and confidential, and Seller agrees, for a period of two years from the date of completion or termination of the applicable Order, to use such information solely for the benefit of Benchmark and to not use or disclose any such information to any third party without prior written consent from Benchmark, unless Seller is required by law or court order to make disclosure. Seller acknowledges and agrees that it will receive proprietary information from Benchmark in connection with and as consideration for execution and performance of an Order. "Confidential Information" shall also include, but not be limited to, any designs, concepts, software, drawings, specifications, processes, procedures, marketing, methods, techniques, pricing, production levels, margins, business opportunities, technical data, suppliers, performance data, pro formas, projections, financial information, plans, strategy, investment information, loan information, security information, and project information. Data and information that is in the public domain, through no wrongful act of Seller, shall not be considered Confidential Information. Seller shall promptly, after termination of the Order, completion of the delivery of the goods or provision of the services pursuant to the Order, return to Benchmark all Confidential Information. Seller acknowledges and agrees that use or disclosure of Confidential Information as prohibited in this paragraph will necessarily damage Benchmark and that in such case there is no adequate remedy at law.
- Non-Disparagement. Seller agrees not to publicly disparage Benchmark in any manner likely to be harmful to it or any of its agents, employees, owners, or affiliated companies or people.
- Benchmark's Property. All (i) reports and other tangible components developed or prepared by Seller for the purpose of, or in the course of fulfilling, the Order and (ii) drawings, designs, blueprints, specifications, software, models and similar items that Benchmark provides to Seller, in each case, belong to Benchmark, and may not be used for or revealed, divulged or made known to any third party without Benchmark's prior written consent, other than to Seller's subcontractors and agents solely to the extent required to fulfill an Order. Upon Benchmark's request, Seller must provide Benchmark with all such materials, including any copies made. Seller assigns to Benchmark, and shall require its employees and subcontractors to assign to Benchmark, all rights, title and interest, including copyright, in any of the materials described above, and to the extent not assigned, Seller hereby grants to Benchmark an irrevocable, assignable, nonexclusive royalty-free unrestricted worldwide right and license to use any intellectual property of Seller necessary in relation to the Product provided by Seller under the Order, including but not limited to allowing Benchmark to market and advertise the Product as necessary to resell to third-parties and customers of Benchmark.
- Good Title; Liens. Seller warrants that it is the legal owner of title to all Product and goods and has the right to transfer such title to all goods and Product to Benchmark, and that the goods will be free from all security interests, hazardous materials, claims, demands, liens and other encumbrances. Seller shall cause any lien, claim or encumbrance ("lien") which may be filed or made against the property of the Benchmark by Seller or any person furnishing goods, to be released and discharged forthwith at the sole cost and expense of Seller. If Seller fails to release or obtain the release and discharge any such lien, then the Benchmark may, but shall not be obligated to, (i) discharge, release or otherwise deal with the lien, and Seller shall pay any and all costs and expenses incurred by the Benchmark in so releasing, discharging or otherwise dealing with the lien, including legal fees, and any amounts so paid by the Benchmark may be deducted from any amounts due to Seller whether under the Order or otherwise; or (ii) revoke acceptance of the goods purchased, in which case Seller must promptly refund any compensation Seller received together with all costs incurred by Benchmark in connection with such revocation. No amounts are payable by the Benchmark to Seller so long as a lien remains registered against the property of the Benchmark.